On June 9 this year, Prime Minister Narendra Modi, while addressing the members of the United States Congress, extolled the ideas of freedom, democracy and equality as the essence of the souls of democracies like India and the USA. Amid a big round of applause he said, “It [the United States Congress] manifests the spirit of this great nation, which in Abraham Lincoln’s words ‘was conceived in liberty and dedicated to the proposition that all men are created equal’.”

However, less than a month later (on June 30), when the 47-member United Nations Human Rights Council (UNHRC) discussed a resolution to appoint an Independent Expert dedicated to monitor human rights violations on grounds of sexual orientation and gender identity, India, a member of the UNHRC, decided to abstain.

Though the resolution, proposed by six Latin American nations (Argentina, Brazil, Chile, Colombia, Mexico and Uruguay) was adopted along with a few amendments by a vote of 23 in favour, 18 against and six abstentions, India, unfortunately, did more than abstain. In order to dilute the resolution, India went ahead and voted in favour of six out of 17 amendments moved by Pakistan on behalf of the Organization of Islamic Cooperation (OIC) states.

Quote: More than 70 countries, including India, have laws to criminalize LGBTIQ individuals and their sexual / romantic relations. While lesbians in South Africa  are extremely vulnerable to ‘corrective rape’, about 40% of the 1.6 million youth who face homelessness every year in USA identify themselves as LGBTIQ. The torture and brutal murder of nearly 300 queer individuals in Brazil in 2013 or the regular execution of gay men in Iraq by Islamic State in Iraq and Syria, the recent murder of queer activists Xulhaz Mannan  in Dhaka or Alisha  in Peshawar – these are all manifestations of homophobia, transphobia and biphobia.

Later, the Ministry of External Affairs (MEA) reminded us of the ‘legal realities’ around lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) rights in India without shedding light on exactly how these realities prevented a positive vote. Despite the same legal realities prevailing in the period 2010-14, India voted in favour of inclusion of sexual orientation and gender identity issues in two other UN resolutions – on extra judicial execution and ECOSOC accreditation of LGBTIQ NGOs.

Defending India’s position on the latest resolution, MEA Spokesperson Vikas Swarup said, “The issue of LGBT rights in India is a matter being considered by the Supreme Court.” Indeed, a batch of curative petitions against Section 377 of the Indian Penal Code, which criminalizes even consensual non penile-vaginal intercourse between two adults, is pending before a five-judge Constitution Bench of the Honourable Supreme Court for a possible reconsideration of the same court’s earlier (December 2013) verdict on Section 377. But should the matter of criminalization of specific sexual acts be conflated with protection of LGBTIQ people from different forms of extra judicial violence committed by State and non-State actors?

In order to appreciate the urgency of the latest UNHRC resolution on sexual orientation and gender identity, we need to look at how widespread and relentless the violence is against LGBTIQ people across the world. As of 2016, more than 70 countries, including India, have laws (including the death sentence in some cases) to criminalize LGBTIQ individuals and their sexual / romantic relations. While lesbians in South Africa are extremely vulnerable to ‘corrective rape’, about 40% of the 1.6 million youth who face homelessness every year in the USA identify themselves as LGBTIQ.

The torture and brutal murder of nearly 300 queer individuals in Brazil in 2013 or the regular execution of gay men in Iraq by Islamic State in Iraq and Syria, the recent murder of queer activists Xulhaz Mannan in Dhaka or Alisha in Peshawar – these are all manifestations of global phenomena called homophobia, transphobia and biphobia. No wonder that UN Secretary General Ban Ki-moon reminded the member countries of their duty to protect LGBTIQ individuals.

Obviously the reminder did not cut ice with Pakistan, which tried to dilute the UNHRC resolution in every possible way. From stripping the words of the specificity of the language of sexual orientation and gender identity and replacing it with other categories of discrimination to introducing problematic notions of cultural relativity in interpreting human rights, Pakistan slowly crawled towards the heart of the resolution (see extracts below) and tried to replace the very operative paragraph of the resolution.

Extract: Protection against violence and discrimination based on sexual orientation and gender identity: The Human Rights Council, reaffirming the Universal Declaration of Human Rights, recalling that the Vienna Declaration and Programme of Action affirms that all human rights are universal, indivisible and interdependent and interrelated, that the international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis, and that while the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms . . .

Extract: A/HRC/32/L.2/Rev.1: 1. Reaffirms that all human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedoms set forth in the Universal Declaration of Human Rights, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status; 2. Strongly deplores acts of violence and discrimination, in all regions of the world, committed against individuals because of their sexual orientation or gender identity; 3. Decides to appoint, for a period of three years, an Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity, with the following mandate: (a) To assess the implementation of existing international human rights instruments with regard to ways to overcome violence and discrimination against persons on the basis of their sexual orientation or gender identity, while identifying both best practices and gaps; (b) To raise awareness of violence and discrimination against persons on the basis of their sexual orientation or gender identity, and to identify and address the root causes of violence and discrimination . . .

India, most likely not willing to be seen as officially regressive and homophobic, abstained on the most atrocious amendments to the key aspects of the resolution. The LGBTIQ movement in India is highly visible and a negative vote would have guaranteed negative publicity for the Indian government. A potential negative reaction from the USA if India voted against the resolution along with Russia could also have been a factor behind India’s abstention. Last year India invited a backlash from the USA and other Latin American nations when it voted in favour of a resolution drafted by Russia that opposed benefits for same-sex partners of UN staff.

Crucially, India’s votes in favour of six amendments were not as problematic as those which India abstained on as these had the potential to dilute the core principle of ‘universality of rights’. Amendment L75, which India voted in favour of, read: “Reiterating the importance of respecting regional, cultural and religious value systems as well as particularities in considering human rights.” But this contradicted India’s constitutional values which hold that cultural approval of discriminatory practices don’t make them any the more acceptable.

Quote: When LGBTIQ people in India are subjected to conversion therapy to ‘cure’ them, or when they are beaten up and sexually assaulted by policemen, which cultural values does the government seek to uphold by not voting in favour of UN resolutions that seek to counter such violence?

For decades the Indian government has touted the line “Society is not ready to accept LGBTIQ individuals.” But changes in society are a continuum and often initiated by enacting laws to protect individuals from society’s unfair treatment. Does the government expect LGBTIQ individuals to hold one-to-one dialogue with the entire populace of India to bring about desired changes in attitudes? When LGBTIQ people in India are subjected to conversion therapy to ‘cure’ them, or when they are beaten up and sexually assaulted by policemen, which cultural values does the government seek to uphold by not voting in favour of UN resolutions that seek to counter such violence? Then again, in the domestic context, isn’t the government’s abstention disrespectful of the Supreme Court’s April 2014 verdict on transgender identities and rights?

For the record, it should be clarified that Section 377 criminalizes only specific sexual acts against the so called ‘order of nature’, and this holds irrespective of the sexual orientation or gender identity of the persons involved. Thus heterosexual individuals and couples are not exempt from the purview of this law. In fact, one could be queer in India and pursue celibacy, thus nullifying the impact of Section 377 in one’s personal life. But one could still be vulnerable to stigma, discrimination and violence because of one’s sexual or gender identity, which is exactly what the UNHRC resolution seeks to counter.

Clearly, India’s abstention was an opportunity lost. But the Indian government cannot wash its hands off the injustice it continues to perpetrate against queer people as well as other marginalized sections of society. As they say, you can fool some people some of the time, but not all people all the time.

Main photo credit: Hari Chhetri

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